Davis v. Commonwealth Election Commission et al

Filing 44

MEMORANDUM Decision and Order of Dismissal Without Prejudice for Lack of Subject Matter Jurisdiction. Signed by Chief Judge Ramona V. Manglona on 6/26/12. (ACH)

1
2
3
4

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN MARIANA ISLANDS

5
6
7
8

Plaintiff,

9
10
11
12
13
14
15
16

Case No.: 1-12-CV-00001

JOHN H. DAVIS, JR.,

MEMORANDUM DECISION AND ORDER
OF DISMISSAL WITHOUT PREJUDICE
FOR LACK OF SUBJECT MATTER
JURISDICTION

v.
COMMONWEALTH ELECTION
COMMISSION; FRANCES M. SABLAN,
Chairperson of Commonwealth Election
Commission; ROBERT A. GUERRERO,
Executive Director of Commonwealth
Election Commission; and BENIGNO R.
FITIAL, CNMI Governor,
Defendants.

17
18
19
20

I.

INTRODUCTION

Plaintiff John H. Davis, Jr. (“Davis”) asks the Court to permanently enjoin the

21
22

chairperson and the executive director of the Commonwealth Election Commission (“CEC” or

23

“the Commission”) from denying him the right to vote on any initiative to amend or repeal

24

Article XII of the Constitution of the Commonwealth of the Northern Mariana Islands

25

(“Commonwealth” or “CNMI”). Article XII restricts ownership of permanent and long-term

26

interests in real property within the Commonwealth to persons of Northern Marianas descent

27
28

-1-

1

(“NMD”).1 In 1999, Article XVIII of the Commonwealth constitution was amended to prohibit

2

non-NMDs who otherwise are qualified voters from voting on initiatives to change Article XII.

3

In 2011, Governor Benigno R. Fitial signed Public Law (“P.L.”) 17-40, which directed CEC to

4

maintain a registry of NMDs. The Commission has promulgated rules and regulations to

5
6

implement P.L. 17-40.

7

Davis, a non-NMD who is otherwise qualified to vote in the Commonwealth, asserts that

8

by enforcing Article XVIII § 5(c) and P.L. 17-40 to restrict his right to vote, Defendants violate

9

his civil rights as guaranteed by the Fourteenth and Fifteenth Amendments of the United States

10

Constitution. He claims for injunctive relief under 42 U.S.C. §§ 1971 and 1983, in the form of a

11
12

declaratory judgment pursuant to 28 U.S.C. § 2201 and 2202 (Declaratory Judgment Act).

13

Defendants Frances M. Sablan, Chairperson of CEC; Robert A. Guerrero, Executive Director of

14

CEC; and Benigno R. Fitial, Governor of the CNMI (collectively “Defendants”), maintain that

15

the federal constitutional protections do not apply in this instance or, alternatively, that the

16

challenged Commonwealth laws do not violate Davis’s federal constitutional rights. Defendants

17
18

also assert that the case must be dismissed because Davis lacks standing and the issue is not ripe

19

for adjudication. For the reasons stated below, the Court finds that Davis lacks standing and the

20

matter is not ripe for decision, and dismisses the case without reaching the merits.

21

II.

BACKGROUND

22
Even though the merits of the case will not be considered, a thorough review of the
23
24

background is necessary to understand why the case, in its current posture, must be dismissed.

25

A.

Land Alienation Restrictions

26

On February 15, 1975, representatives of the United States and the Northern Mariana

27
1

28

The constitutionality of Article XII has been affirmed, see Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir.
1992), and is not at issue in this case.

-2-

1

Islands signed the Covenant to Establish a Commonwealth of the Northern Marianas Islands in

2

Political Union with the United States of America (“Covenant”). The Covenant was approved

3

by the Mariana Islands District Legislature and by Northern Marianas voters in a plebescite, and

4

then was ratified by the Congress of the United States on March 24, 1976. P.L. 94-241; 90 Stat.

5
6
7

263, codified at 48 U.S.C. § 1801 note.
Section 805 of the Covenant “provides that, notwithstanding federal law, the

8

Commonwealth government shall regulate the alienation of local land to restrict the acquisition

9

of long-term interests to persons of Northern Mariana Island descent.” Wabol v. Villacrusis, 958

10

F.2d 1450, 1452 (9th Cir. 1992). The text of Section 805 reads, in pertinent part:

11

17

. . . notwithstanding the other provisions of this Covenant, or those provisions of
the Constitution, treaties or laws of the United States applicable to the Northern
Mariana Islands, the Government of the Northern Mariana Islands, in view of the
importance of the ownership of land for the culture and traditions of the people of
the Northern Mariana Islands, and in order to protect them against exploitation
and to promote their economic advancement and self-sufficiency . . . will until
twenty-five years after the termination of the Trusteeship Agreement, and may
thereafter, regulate the alienation of permanent and long-term interests in real
property so as to restrict the acquisition of such interests to persons of Northern
Mariana Islands descent[.] (emphasis added)

18

Section 501(a) of the Covenant makes the Fifteenth Amendment and section 1 of the

12
13
14
15
16

19

Fourteenth Amendment of the United States Constitution applicable within the CNMI. The

20
21

Fourteenth Amendment declares that it is unlawful for any state to “deprive any person of life,

22

liberty or property, without due process of law; nor deny to any person within its jurisdiction the

23

equal protection of the laws.” U.S. Const. amend. XIV § 1. The Fifteenth Amendment protects

24

the right to vote: “The right of citizens of the United States to vote shall not be denied or

25

abridged by the United States or by any state on account of race, color, or previous condition of

26
27
28

servitude.”
The framers of the Covenant understood that the land alienation restrictions of Section

-3-

1

805 may conflict with certain federally guaranteed rights. They wished “to make clear that under

2

no circumstances can anything in Section 501 or, for that matter, any provision in the Covenant,

3

have the effect of prohibiting the local government from imposing land alienation restrictions

4

under Section 805[.]” Marianas Political Status Commission, Section by Section Analysis of the

5
6

Covenant to Establish a Commonwealth of the Northern Mariana Islands 47 (1975). They

7

therefore expressly stated in the Covenant that the applicability of federal laws is “without

8

prejudice to the validity of and the power of the Congress of the United States to consent to . . .

9

Section 805 . . .” Covenant § 501(b).

10

Article XII of the Commonwealth Constitution implements Covenant § 805. See Wabol,

11
12

958 F.2d at 1452. It restricts the “acquisition of permanent and long-term interests in real

13

property within the Commonwealth . . . to persons of Northern Marianas descent.” N.M.I.

14

Const. art. XII § 1. Section 4 of Article XII defines a person of Northern Marianas descent as

15

20

a person who is a citizen or national of the United States and who is of at least
one-quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood
or a combination thereof or an adopted child of a person of Northern Marianas
descent if adopted while under the age of eighteen years. For purposes of
determining Northern Marianas descent, a person shall be considered to be a fullblooded Northern Marianas Chamorro or Northern Marianas Carolinian if that
person was born or domiciled in the Northern Mariana Islands by 1950 and was a
citizen of the Trust Territory of the Pacific Islands before the termination of the
Trusteeship with respect to the Commonwealth.

21

In 1992, the Ninth Circuit was called upon to determine “whether the constitutional

16
17
18
19

22

guarantee of equal protection of the laws limits the ability of the United States and the

23
24

Commonwealth to impose race-based restrictions on the acquisition of permanent and long-term

25

interests in Commonwealth land.” Wabol, 958 F.2d at 1451. The court held that under the

26

territories clause (U.S. Const. art. IV § 3), Congress had the power to exclude Covenant § 805

27

from the reach of the Fourteenth Amendment’s equal protection clause. Id. at 1462. It observed

28
that only “fundamental” constitutional rights necessarily apply in the territories. Id. at 1459. It

-4-

1

found that “the asserted constitutional guarantee against discrimination in the acquisition of long-

2

term interests in land” was not fundamental in the international sense and therefore could be

3

excluded from operation in the CNMI. Id. at 1460, 1462.

4

B.

Amendment of Article XII

5
In 1947, the United States entered into an agreement with the United Nations to

6
7

administer in trust the Northern Marianas and other Pacific islands formerly mandated to Japan.

8

See id. at 1458. The Trusteeship Agreement was terminated by presidential proclamation on

9

November 3, 1986. Proclamation No. 5564, 51 Fed. Reg. 40,399 (Nov. 7, 1986). Section 805 of

10

the Covenant mandated that restrictions on alienation of permanent and long-term interests in

11
12

land remain in place until at least 25 years after the termination of the Trusteeship Agreement.

13

Thus, since November 2011, the Commonwealth has had the power, in conformity with Section

14

805, to amend its constitution so as to modify or repeal the land alienation restrictions of Article

15

XII.

16

Amendments to the Commonwealth Constitution “may be proposed by constitutional

17
18

convention, legislative initiative or popular initiative.” N.M.I. Const. art. XVIII § 1. By act of

19

the legislature or by initiative petition, the question of whether to hold a constitutional

20

convention to propose amendments to the Constitution may be submitted to the voters. Id. §

21

2(a),(b). Alternatively, specific amendments may be proposed by initiative petition, “signed by

22
at least fifty percent of the persons qualified to vote in the Commonwealth and at least twenty23
24

five percent of the persons qualified to vote in each senatorial district.” Id. § 4(a). All proposed

25

constitutional amendments, after certification by the Commonwealth’s attorney general, must be

26

“submitted to the Commission not more than one hundred twenty (120) days and not less than

27
28

-5-

1
2

ninety (90) days before the day of the election.” 1 CMC § 6351. Ratification of a proposed
amendment requires approval “by a majority of the votes cast.” N.M.I. Const. art. XVIII § 5(b). 2

3

C.

4

Article VII of the Commonwealth Constitution sets forth the qualifications of voters.3

Voter Eligibility

5
6

Any U.S. citizen or national who on the date of the election is at least 18 years of age, a resident

7

and domiciliary of the Commonwealth for the statutorily provided period, and not serving a

8

felony sentence or of unsound mind, is eligible to vote. N.M.I. Const. art. VII § 1.

9
10

In 1999, voters approved Senate Legislative Initiative 11-1, which proposed to amend
Section 5 of Article XVIII by adding a new subsection. Subsection c reads:

11

14

In the case of a proposed amendment to Article XII of this Constitution, the word
“voters” as used in subsection 5(a) above shall be limited to eligible voters under
Article VII who are also persons of Northern Marianas descent as described in
Article XII, Section 4, and the term “votes cast” as used in subsection 5(b) shall
mean the votes cast by such voters.

15

On April 21, 2011, Governor Benigno R. Fitial signed into law House Bill 17-57, HD1.

12
13

16

The new law, P.L. 17-40, established a Northern Marianas Descent Registry (“NMDR”) within

17
18

the Commonwealth Election Commission and mandated the production of an Official Northern

19

Marianas Descent Identification Card “that will be issued only to persons who are qualified

20

pursuant to Article XII, § 4 of the Northern Mariana Islands Constitution.” P.L. 17-40 § 2. The

21

executive director of CEC is tasked with managing the “registry and activities of the NMDR.”

22

Id. § 2(b). The primary purpose of the NMDR is to serve as “the official registry of persons of

23
24
25

Northern Marianas descent in any and all elections . . . that requires [sic] only persons of
Northern Marianas descent to vote in such election pursuant to the said Article XVIII, § 5 of the

26
27
28

2

For amendments proposed by constitutional convention or by popular initiative, ratification additionally
requires approval by “at least two-thirds of the votes cast in each of two senatorial districts.” Id.

3

The Covenant is silent on voter eligibility.

-6-

1

Northern Marianas Islands Constitution . . .” Id. § 2(c)(1). No form of NMD identification

2

issued by an agency other than CEC may be used for purposes of voting on proposed Article XII

3

amendments. Id. § 2(c)(4). To accomplish its task, CEC may require the local hospital and local

4

courts “to provide a copy of the original birth record showing the natural parents or ancestors of

5
6
7

the person registering. Such birth record shall identify the nationality and race of the parents, i.e.
NMD Chamorro or Carolinian or part NMD, etc.” Id. § 2(c)(5).
The Commission has promulgated rules and regulations to effectuate the purposes of P.L.

8
9
10

17-40. See 33(9) N. Mar. I. Reg. 31918 et seq. (Sept. 26, 2011).4 To register for the NMDR, a
person must complete a Registration Affidavit and execute an oath, under penalty of perjury,

11
12

attesting that he or she is of Northern Marianas descent as defined in Article XII § 4. Id. at

13

31918, 31930. If the registration clerk believes that a person is not qualified to register, the clerk

14

shall allow the person to fill out the affidavit but “immediately inform the Executive Director or

15

a Commission staff person that the person attempting to register might not be eligible to register

16

as an NMD in the Commonwealth.” Id. The challenged registration then goes to a hearing

17
18

before the Commission. Id.

19

As of the April 26 motions hearing in this matter, at least five initiatives regarding Article

20

XII were pending in the Commonwealth legislature. (See Second Amended Complaint (“SAC”),

21

ECF No. 26, § 27; Answer, ECF No. 28, § 27.) No initiative, however, had yet qualified for the

22
next general election on November 6, 2012, and no special election to vote on an initiative was
23
24

scheduled. Since the hearing, the parties have not filed any supplemental papers advising that a

25

petition has qualified for the ballot.

26
27
28

4

The rules and regulations and the Registration Affidavit are available online at the Commission’s
website, at http://www.votecnmi.gov.mp/downloads/NMDR_Regs.pdf.

-7-

1

It is undisputed that Plaintiff Davis is a U.S. citizen and a resident of the CNMI; that he is

2

eligible to vote pursuant to Article VII of the Commonwealth Constitution and is a registered

3

voter; and that he is not of Northern Marianas descent. (Opposition (“Opp.”), ECF 36 at 9.) At

4

the hearing, the parties stipulated that it would be futile for Davis to attempt to register with the

5
6

Commission for the NMDR.
III.

7
8
9
10

PROCEDURAL POSTURE

On January 3, 2012, Plaintiff Davis filed his initial Complaint (ECF No. 1) and later that
same day filed an Amended Complaint (ECF No. 2). Davis thereafter voluntarily dismissed
Defendants Eliceo D. Cabrera and Paul A. Manglona from the lawsuit. (See ECF No. 9.) On

11
12

March 22, the Court dismissed the Amended Complaint for lack of subject matter jurisdiction

13

and gave Davis fourteen days in which to amend further to cure the jurisdictional deficiencies.

14

(See Decision and Order, ECF No. 25.) On March 26, Davis filed a Second Amended Complaint

15

(ECF No. 26) setting forth seven claims for relief. Prior to the motions hearing, the Court

16

granted Defendant CEC’s motion for summary judgment and dismissed CEC as not a proper

17
18
19
20

defendant on any of Davis’s claims. (See CEC Order, ECF No. 40.)
The matter is now before the Court on the remaining parties’ cross-motions for summary
judgment on all claims.

21

IV.

DISCUSSION

22
A.

Standing

23
24

A court must dismiss an action if at any time it determines that it lacks subject matter

25

jurisdiction. Fed. R. Civ. P. 12(h)(3). A “necessary component” of subject matter jurisdiction is

26

Article III standing. Palmdale Hills Prop., LLC v. Lehman Commer. Paper, Inc. (In re Palmdale

27
28

-8-

1
2

Hills Prop., LLC), 654 F.3d 868, 873 (9th Cir. 2011). To have constitutional standing, Davis
must satisfy three conditions:

3

First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal
connection between the injury and the conduct complained of – the injury has to
be “fairly . . . trace[able] to the challenged action of the defendant, and not . . .
th[e] result [of] the independent action of some third party not before the court.”
Third, it must be “likely,” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”

4
5
6
7
8
9

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations and quotation

10

marks omitted). Clearly, the second and third conditions are present. Davis’s claimed injury is

11

directly traceable to the application of Commonwealth laws and regulations that restrict voting

12

on Article XII initiatives. A favorable court ruling will restore his ability to vote on such

13

matters.

14
The operative question is whether Davis has suffered or is about to suffer an injury in

15
16

fact. As a duly registered voter, Davis has a legally protected interest in exercising his right to

17

vote. The injury from not being permitted to vote on an Article XII initiative is concrete and

18

particular. Because he is not of Northern Marianas descent, Article XII prohibits him from

19
owning land in fee simple. The outcome of any vote to amend Article XII may affect his
20
21

potential rights to own real property in the place he has made his home. Davis is injured if he is

22

unlawfully deprived of the ultimate say a citizen has in political affairs: a vote.

23
24
25
26

The imminence of such a ballot initiative is suggested by the Commonwealth’s own
recent preparations for an Article XII vote by passing P.L. 17-40 and by promulgating and
effectuating regulations to register persons of Northern Marianas descent. 5 The Commission’s

27
28

5

While the government may put the NMD registry to additional uses, its primary purpose is to
register NMDs to vote. Creation and maintenance of the registry were placed in the hands of the

-9-

1

regulations require that a person applying to register swear upon penalty of perjury that he or she

2

is of Northern Marianas descent. Thus, Commonwealth officials today are requiring otherwise

3

qualified NMD voters to take affirmative steps to secure their right to vote on Article XII

4

initiatives.

5
6

Still, it is not clear that the inability of non-NMDs to register is an injury in fact. If Davis

7

were to prevail on the merits of this case, the Court would not order the Commission to let him

8

register as an NMD, but would declare that he does not have to register as an NMD in order to

9

vote. Because Davis is already registered to vote, he would not have to take any action to benefit

10

from the ruling, other than to show up at the polls and cast a ballot if he so chooses. The injury

11
12
13

would only occur, if ever, on the date of the election.
The analysis might be different with a different plaintiff. Organizations that mobilize to

14

register minority voters may suffer an injury in fact if the allegedly unlawful restrictions on

15

registration impair their ability to allocate resources for registration drives and to educate

16

prospective voters. See, e.g. Fla. State Conference of NAACP v. Browning, 522 F.3d 1153,

17
18

1165–66 (11th Cir. 2008); cf. Havens Realty Corp. v. Coleman, 455 U.S. 363 (drain on nonprofit

19

corporation’s limited resources caused by realty company’s unlawful housing practices created

20

injury in fact). Davis, however, is not hampered prior to the actual balloting. He may participate

21

fully in any campaign to change Article XII. The Commonwealth laws at issue in this case do

22
not impair his right to speak out on Article XII, to contribute his time and money to efforts to
23
24

defeat or pass an Article XII initiative, or even to sign a petition to put an initiative on the ballot.

25
26
27
28

commission that conducts elections. The Commission’s regulations state explicitly, “An NMD
registers to vote by completing the affidavit . . . and providing all of the information as required
by law, and executing same under the penalty of perjury.” 33(9) N. Mar. I. Reg. 031918 (Sept.
26, 2011).

-10-

1

See “Validity of a signature of a person who is not of Northern Marianas Descent on a popular

2

initiative petition proposing to amend Art. XII of the Commonwealth Constitution,” A.G. Legal

3

Opinion No. 2012-02, 34(4) N. Mar. I. Reg. 032404 (Apr. 29, 2012).

4

Davis’s injury is not actual, because it does not occur until he is denied the right to vote

5
6
7

or his ballot is disallowed. It is not imminent, because no petition is on the November ballot.
Davis therefore cannot show an injury in fact, and lacks standing.

8

B.

9

The inquiry is incomplete, however, without discussion of a jurisdictional issue closely

10

Ripeness

related to injury in fact: namely, ripeness. Even if Davis’s injury were imminent so as to satisfy

11
12

the requirements of standing, the court must nevertheless decline to exercise jurisdiction if the

13

matter is not ripe for review. Ripeness doctrine “is both drawn both from Article III limitations

14

on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park

15

Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (internal quotation marks

16

omitted). Ripeness is “peculiarly a question of timing . . .” Regional Rail Reorganization Act

17
18

Cases, 419 U.S. 102, 140 (1974). A claim is “not ripe for adjudication if it rests upon contingent

19

future events that may not occur as anticipated, or indeed may not occur at all[,]” or if it is “too

20

speculative whether the problem [plaintiff] presents will ever need solving.” Texas v. United

21

States, 523 U.S. 296, 300, 302 (U.S. 1998) (internal citation omitted). However, “[w]here the

22
inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the
23
24

existence of a justiciable controversy that there will be a time delay before the disputed

25

provisions will come into effect.” Regional Rail, 419 U.S. at 143. Where, as here, plaintiff is

26

asking the court to declare his rights under the law, Article III “requires that there be a

27

‘substantial controversy . . . of sufficient immediacy and reality to warrant the issuance of a

28

-11-

1

declaratory judgment.’” Aydin Corp. v. Union of India, 940 F.2d 527, 528 (9th Cir. 1991)

2

(original emphasis) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,

3

273 (1941)).

4

By its emphasis on the contingency or speculativeness of plaintiff’s injury, the ripeness

5
6

inquiry “overlaps with the ‘injury in fact’ analysis for Article III standing.” Wolfson v.

7

Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010). The two inquiries are “largely the same[.]” Id.

8

The distinction is that while injury in fact, as a component of standing, focuses on “who is a

9

proper party to litigate a particular matter, ripeness addresses when that litigation may occur.”

10

Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997) (original emphasis). In particular, ripeness

11
12
13
14
15
16

is at issue when a party seeks pre-enforcement review of a statute or regulation. Id. If the injury
in fact is “certainly impending, that is enough.” Regional Rail, 419 U.S. at 143.
To determine ripeness, a court must evaluate (1) the “fitness of the issues for judicial
decision” and (2) the “hardship to the parties of withholding court consideration.” Texas v.
United States, 523 U.S. at 301 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149

17
18

(1967)). A matter is fit if it presents a “purely legal” issue. Abbott Laboratories, 387 U.S. at

19

149. The court should consider, however, whether “[t]he operation of the statute is better

20

grasped when viewed in light of a particular application.” Id. at 301. A case may not be ripe if

21

the court “would benefit from further factual development of the issues presented.” Ohio

22
Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998).
23
24

The issues in this case are fit for judicial decision. They deal almost exclusively with

25

questions of constitutional law. The established facts, that Davis is a duly registered voter who is

26

not of Northern Marianas descent, are sufficient to grasp that if Davis tries to vote on an Article

27

XII initiative, he will either be prevented from voting or, having somehow managed to cast a

28

-12-

1
2

vote, his ballot could be invalidated. Further development of the record, as may occur through
the passage of time, is not necessary.

3
4

As to hardship, defendants assert that Davis’s claim is not ripe because no initiatives to
amend Article XII have yet qualified for the ballot. The contingent future event – a popular vote

5
6

on a ballot initiative – may not occur as anticipated, in this election cycle, and indeed may never

7

occur at all. Until a petition is certified, “Plaintiff’s frustration is entirely based on a hypothetical

8

situation.” (Opp. at 17.)

9
10

This argument has merit. As likely as it seems that in the not-too-distant future an Article
XII initiative will be put to a vote, it cannot be said that a ballot initiative is inevitable. In

11
12

Regional Rail, a takings challenge to a congressional act that would, at an indeterminate date in

13

the future, consolidate private rail properties was ripe because “the implementation of the Rail

14

Act will now lead inexorably to the final conveyance . . .” Regional Rail, 419 U.S. at 140

15

(emphasis added). In contrast, no constitutional or statutory provision requires the people of the

16

CNMI ever to vote on modifying or repealing Article XII. While Davis may find it distressing to

17
18
19

contemplate that under Commonwealth law, if an Article XII initiative gets on the ballot he will
not be permitted to vote on it, he suffers no hardship until an initiative is “certainly impending.”

20
21

It is now barely more than four months before the November general election. The
thirty-day window for presenting Article XII petitions to the Commission is about to open, and

22
close. If a petition is presented, Davis will surely have standing and the matter will be ripe for
23
24

adjudication.

25

///

26

//

27

/

28

-13-

1

V.

CONCLUSION

2

For the foregoing reasons, the Court dismisses this case for lack of subject matter

3

jurisdiction. The cross-motions for summary judgment are, therefore, mooted. The dismissal is

4

without prejudice, as the Court has not reached the merits.

5
6

SO ORDERED this 26th day of June, 2012.

7
____________________________
RAMONA V. MANGLONA
Chief Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-14-